The Gilmer Law Firm, PLLC

In the last several years, 19 states have legalized same-sex marriage, with New York being one of those. Largely, issues regarding marriage and divorce have followed the same principles as any other.

However, our Brooklyn family law attorneys have seen that issues regarding child custody matters involving same-sex couples are decidedly more complex. This stems from the fact that even when both parties have an equal hand in raising the child, only one is a biological parent. Unless a child is legally adopted by the other, the non-biological parent's rights to custody in the event of a split could be limited.

This was the scenario before the New Hampshire Supreme Court in In re Guardianship of Madelyn B. In that state, same-sex marriage was legalized in 2010. The two women in this case had been romantically involved since 1997, and both considered themselves to be in a fully-committed marital relationship. The non-biological mother took the last name of the biological mother, the two shared a home and bills and lived like any other married couple. However, they were never formally married, as the state did not yet recognize their union.

In 2002, the biological mother in the case became pregnant via sperm donor, and the two raised the child together, with the non-biological mother retaining guardianship of the girl and being actively involved in her life. However, when the child turned 6, the couple ended their relationship.

During that time, the non-biological mother secured guardianship of the child, paid weekly child support, and engaged in regular visitation with the child. She also provided her with food, clothing and gifts.

This arrangement continued until, several years later, the biological mother became engaged to a man and stopped cashing the checks. The non-biological mother continued to send them anyway. The biological mother then informed her ex the child no longer wanted a relationship with her, that there would be no further communication and cut off all contact.

The biological mother filed a motion to terminate her ex-spouse's guardianship, on the grounds that the child no longer wanted to see her and that the only reason it was initiated in the first place was so the child could remain on the other woman's health insurance. She further noted her new husband was in the process of completing formal adoption proceedings.

The non-biological mother moved for an immediate hearing. The family court denied the motion by the non-biological mother and terminated her guardianship. She appealed, asserting the termination of guardianship without a hearing or discovery was erroneous and the court was wrong to deny her motion to intervene in the adoption.

The Supreme Court reversed, finding the guardianship issue needed to be resolved before the adoption could proceed. Further, the presumption of "paternity" or parentage is not driven by biological paternity, but rather by the state's interest in the welfare of the child and the integrity of the family. Citing previous case law, the court noted that a relationship between a non-biological parent and a child two or older that results from the pair living together in a parent/child relationship is "not to be lightly dissolved." Statutes regarding paternal rights, the court held, are to be equally applied to both women and men, and the court found the non-biological mother in this case had stated sufficient facts to stake a claim for presumed parentage under state law.

The lower court's decision was vacated and the case remanded for further proceedings consistent with this view.

If you are dealing with child-custody issues in New York City, call our offices at (718) 864-2011.